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McDonough v. Stackley

United States District Court, District of Columbia

March 16, 2017

Michael P. McDonough, Plaintiff,
Sean J. Stackley, [1] Defendant.


          Amit P. Mehta, United States District Judge

         Plaintiff Michael P. McDonough, a former officer in the United States Navy, seeks judicial review of a decision of the Board for Correction of Naval Records (“BCNR” or “Board”) denying his request for reconsideration to alter his military records. Plaintiff served as a nuclear mechanic in the Navy from 2002 to 2009. After being disciplined for misconduct on a routine audit exam, he was demoted and subsequently left the Navy.

         The circumstances of Plaintiff's departure from the Navy lie at the heart of this dispute. According to the Navy, after his demotion, Plaintiff voluntarily resigned. Plaintiff's military records reflect this version of events. The Navy then sought to recoup from Plaintiff certain bonus payments paid upon his enlistment and re-enlistment. According to Plaintiff, however, following his demotion, the Navy implemented a reduction in force that led to his involuntary removal from the Navy, rendering any collection of his bonus payments improper.

         In August 2011, Plaintiff asked the Board to change his military records to indicate that his removal was involuntary, which would have the effect of discharging the bonus-payment debt obligation. The Board denied both Plaintiff's initial application and his request for reconsideration, leading Plaintiff to seek review in this court.

         This matter is before the court on the parties' cross-motions for summary judgment. Because the Board rendered its decision by adopting an advisory opinion that does not address Plaintiff's arguments, and because the record does not reflect that the Board undertook an independent review untainted by the fundamentally flawed advisory opinion, the court finds that the Board's denial was arbitrary and capricious. Accordingly, the court denies Defendant's Motion for Summary Judgment, grants Plaint iff's Motion for Summary Judgment, and remands this matter for further consideration.

         I. BACKGROUND

         Plaintiff Michael P. McDonough served as a nuclear mechanic in the Navy from 2002 to 2009. Admin. Rec., ECF No. 15 [hereinafter Admin. Rec.], Pt. 1, ECF No. 15-1 [hereinafter A.R. Pt. 1], at 17-18; Admin. Rec., Pt. 2, ECF No. 15-2 [hereinafter A.R. Pt. 2], at 198-99; Admin. Rec., Pt. 4, ECF No. 15-4 [hereinafter A.R. Pt. 4], at 388-99.[2] Plaintiff received a series of bonuses upon his enlistment and reenlistment in the Navy-$12, 000 in 2002; $27, 304.99 in 2004; $42, 373.50 in 2008; and $8, 474.70 in 2009. A.R. Pt. 1 at 5, 30, 156; Admin. Rec., Pt. 5, ECF No. 15-5 [hereinafter A.R. Pt. 5], at 410. While serving as a naval officer, Plaintiff was assigned two Navy Enlistment Classification (“NEC”) codes-3385 and 3377-which indicated his technical qualifications. See Def.'s Mot. for Summ. J, ECF No. 6, Def.'s Mem. in Supp., ECF No. 6-1 [hereinafter Def.'s Mot.], at 2-3; Pl.'s Cross-Mot. for Summ. J., ECF No. 9, Pl.'s Mem. in Supp., ECF No. 9-1 [hereinafter Pl.'s Mot.], at 1; A.R. Pt. 1 at 1, 29-30; Admin. Rec., Pt. 3, ECF No. 15-3 [hereinafter A.R. Pt. 3], at 278-280.

         In 2009, Plaintiff was disciplined for misconduct on a routine audit exam, causing him to be demoted and leading his commanding officer to request that Plaintiff's classification codes be removed. Def.'s Mot. at 3-4; Pl.'s Mot. at 2; A.R. Pt. 1 at 24; A.R. Pt. 2 at 139-143, 188; A.R. Pt. 3 at 284. Plaintiff was discharged from the Navy in September 2009. A.R. Pt. 1 at 16; A.R. Pt. 2 at 198-99. His discharge papers listed the reason for his discharge as “reduction in force” and used separation code “KCC, ” which signifies a voluntary departure. A.R. Pt. 1 at 16, 29; A.R. Pt. 2 at 198-99; A.R. Pt. 5 at 526. Several months later, the Defense Finance and Accounting Service (“DFAS”) sent Plaintiff a bill for $51, 194.93-an amount representing the “unearned portion of [Plaintiff's] enlistment or reenlistment bonus.” A.R. Pt. 4 at 366-67. Plaintiff requested DFAS review the debt, and the DFAS concluded the debt was valid. A.R. Pt. 1 at 81-85.

         Plaintiff then turned to the Board for Correction of Naval Records (“BCNR” or “Board”). He asked the Board to modify his records to reflect that he was discharged from the Navy involuntarily due to a force reduction, which, if granted, would relieve him of any obligation to repay bonus funds. A.R. Pt. 1 at 1, 15, 20-22, 29-44, 82-85; A.R. Pt. 3 at 202. In response to Plaintiff's application, the Board sought an advisory opinion from the Office of the Chief of Naval Operations (“CNO”), which concluded that Plaintiff had voluntarily left the Navy and that recouping his bonus payments was proper. A.R. Pt. 1 at 28-30. Plaintiff's counsel wrote a letter to the Board, dated February 12, 2012, urging it to disregard the advisory opinion. A.R. Pt. 3 at 260-61. Relying heavily on the CNO's advisory opinion, the Board then denied Plaintiff's application. A.R. Pt. 1 at 19-23, 29-30. Plaintiff submitted a request for reconsideration (“Motion”), and the Board once again sought an advisory opinion. A.R. Pt. 2 at 123-24, 178-189. The CNO recommended denying Plaintiff's Motion. A.R. Pt. 2 at 113-15. The Board, relying on the second advisory opinion from the CNO, denied the Motion. A.R. Pt. 1 at 97-99.

         The Board's denial of Plaintiff's Motion forms the basis of this lawsuit. See Compl., ECF No. 1 [hereinafter Compl.], ¶ 1. In sum, Plaintiff claims that the Board's decision was arbitrary and capricious-in violation of the Administrative Procedure Act (“APA”), 5 U.S.C. § 701 et seq.-because the Board failed to consider any argument he advanced in his Motion. See Compl. ¶¶ 1, 75-76. The parties then filed cross-motions for summary judgment, to which the court now turns.


         The Secretary of the Navy is authorized to modify military records “when [he] considers it necessary to correct an error or remove an injustice.” 10 U.S.C. § 1552. The Navy carries out this function through the Board, which rules on petitions to correct military records. 32 C.F.R. § 723.1. A district court may review the decision of a military board of correction using “familiar principles of administrative law.” Kreis v. Sec'y of the Air Force, 866 F.2d 1508, 1511 (D.C. Cir. 1989); see also Piersall v. Winter, 435 F.3d 319, 323-24 (D.C. Cir. 2006) (discussing the “well-settled rule that the decisions of boards for correction of military records are subject to review under the APA”). The court's role is limited: it must “determine only whether the Secretary's decision making process was deficient, not whether his decision was correct.” Kreis, 866 F.2d at 1511.

         In making such an evaluation, the district court owes the military board of correction's decision a heightened degree of deference. Although subject to the APA's arbitrary and capricious standard, 5 U.S.C. § 706(2)(A), courts review board decisions under an “unusually deferential” application of that standard. Kreis, 866 F.2d at 1514; Cone v. Caldera, 223 F.3d 789, 793 (D.C. Cir. 2000). That is because an element of discretion on the part of the military board is built into the statutory section authorizing review. Indeed,

[i]t is simply more difficult to say that the Secretary has acted arbitrarily if he is authorized to act “when he considers it necessary to correct an error or remove an injustice, ” than it is if he is required to act whenever a court determines that certain objective conditions are met, i.e., that there has been an error or injustice.

Kreis, 866 F.2d at 1514 (citation omitted). It is this additional grant of statutory authority that warrants the greater deference. Even under such a deferential standard, however, the military board must provide the district court with a “reason that [the] court can measure” ...

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